FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OWNER-OPERATOR INDEPENDENT 

DRIVERS ASSOCIATION, INC.; FRANK

BELCHER; MARC MAYFIELD,

Plaintiffs-Appellants,

No. 09-17643  D.C. No. v.

2:02-cv-01059-PGR

SWIFT TRANSPORTATION CO., INC.

(AZ); SWIFT TRANSPORTATION CO.,

INC. (NV),

Defendants-Appellees. 

OWNER-OPERATOR INDEPENDENT 

DRIVERS ASSOCIATION, INC.; FRANK

BELCHER; MARC MAYFIELD,

No. 09-17726 Plaintiffs-Appellees,

D.C. No.

v.  2:02-cv-01059-PGR

SWIFT TRANSPORTATION CO., INC.

OPINION (AZ); SWIFT TRANSPORTATION CO.,

INC. (NV),

Defendants-Appellants. 

Appeal from the United States District Court

for the District of Arizona

Paul G. Rosenblatt, Senior District Judge, Presiding

Argued and Submitted

December 9, 2010—San Francisco, California

Filed January 20, 2011

1193
Before: Dorothy W. Nelson, David R. Thompson, and

M. Margaret McKeown, Circuit Judges.

Opinion by Judge D. W. Nelson

1194 OWNER-OPERATOR v. SWIFT TRANSPORTATION
COUNSEL

Brian J. Campbell, Phoenix, Arizona, for the plaintiffsappellants-cross-appellees.

Paul D. Cullen, Daniel E. Cohen, and Joyce E. Mayers, Washington, District of Columbia, for the plaintiffs-appellantscross-appellees. 

William E. Quirk, James C. Sullivan, and Anthony W.

Bonuchi, Kansas City, Missouri, for the defendants-appelleescross-appellants.

OPINION

D. W. NELSON, Senior Circuit Judge:

Plaintiffs Frank Belcher, Marc Mayfield, and the OwnerOperator Independent Drivers Association, Inc. (“OOIDA”)

appeal the district court’s order granting summary judgment

to Defendants Swift Transportation Co. (“Swift”) regarding

OWNER-OPERATOR v. SWIFT TRANSPORTATION 1197
liability and damages under the Truth-in-Leasing regulations.1

Defendants cross-appeal the district court’s finding that the

statute of limitations is four years instead of two. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Swift is a federally regulated motor carrier that hauls

freight in interstate commerce. The named plaintiffs in this

case are former owner-operator truck drivers who were hired

by Swift to haul freight. Plaintiff OOIDA is a trade association with more than 160,000 members. Owner-operators are

truck drivers who contract with motor carriers to provide

hauling services; they typically own their own equipment and

lease out their trucks and hauling services to carriers on a

weekly basis. Frequently, carriers pre-pay the costs of certain

goods and services for which the owner-operators are ultimately responsible. These items may include fuel, insurance,

tires, and other necessary goods and services. The cost of

these items is then deducted from owner-operators’ compensation in a process known as a “charge-back.” Charge-backs

are noted along with compensation on drivers’ weekly pay

stubs, also known as settlement sheets or statements. 

The Department of Transportation (“DOT”) is authorized

to regulate the relationship between owner-operators and

motor carriers, including required terms in their leases. See 49

U.S.C. § 14102(a). The federal Truth-in-Leasing regulations,

49 C.F.R. Part 376, set forth specific requirements with regard

to charge-backs in response to concerns that carriers were taking advantage of owner-operators and overcharging them with

undisclosed mark-ups on certain items. See OOIDA v. Swift

Transp. Co. (“Swift I”), 367 F.3d 1108, 1110 (9th Cir. 2004).

The regulations were originally enforced by the Interstate

Commerce Commission (“ICC”); now that the ICC has been

eliminated, owner-operators have a private right of action to

1We use “OOIDA” in this opinion to refer to all plaintiffs, and “Swift”

to refer to defendants. 

1198 OWNER-OPERATOR v. SWIFT TRANSPORTATION
enforce the regulations. See id.; 49 U.S.C. § 14704(a). Section

14704(a)(1) provides a right to injunctive relief, and (a)(2)

provides a right to seek damages for injuries “sustained by a

person as a result of an act or omission of [a] carrier or broker

in violation of this part.” 49 U.S.C. § 14704(a).

Plaintiffs brought suit under section 14704(a) against Swift

“alleging that the carriers’ standard form lease agreements

violate the Truth-in-Leasing regulations in various respects.”

Swift I, 367 F.3d at 1110. Plaintiffs sought declaratory relief,

injunctive relief, and damages. As a result of this litigation,

Swift revised its leases beginning January 1, 2003. 49 C.F.R.

§ 376.12(h), provides that

[t]he lease shall clearly specify all items that may be

initially paid for by the authorized carrier, but ultimately deducted from the lessor’s compensation at

the time of payment or settlement, together with a

recitation as to how the amount of each item is to be

computed. The lessor shall be afforded copies of

those documents which are necessary to determine

the validity of the charge.

The district court found that Swift’s form lease agreements

used prior to 2003 (the “Old Form” lease), violated the Truthin-Leasing regulations because they “did not disclose the fact

that certain of the charge-backs included a ‘mark-up.’ ”

OOIDA v. Swift Transp. Co. (“DC Opinion & Order”), No.

CV-02-1059-PHX-PGR, 2007 WL 2808997, at *2 (D. Ariz.

Sept. 27, 2007). By contrast, the district court found that

Swift’s leases entered into on or after January 1, 2003

(“Revised Lease”) complied with section 376.12(h) because

they disclosed that charge-backs would include certain administrative costs and other fees such as “the cost of the fuel,

taxes, other government fees and charges, delivery/freight

costs and administrative expenses.” See id. at *5-6 & n.11.

Swift’s Revised Lease also discloses each item that will be

subject to a charge-back and either a flat-fee amount for that

OWNER-OPERATOR v. SWIFT TRANSPORTATION 1199
charge-back or other information relevant to determining the

price. Swift’s settlement statements (which are similar to pay

stubs or receipts) list the amount deducted from owneroperators’ compensation. Those amounts match the amount

listed earlier on the leases. However, Swift’s Revised Lease

does not disclose what portion of that price is attributable to

costs and what portion is profit, administrative fees, or other

charges. 

The district court granted in part and denied in part the parties’ cross-motions for summary judgment. It concluded that,

while Swift’s Old Form lease violated the Truth-in-Leasing

regulations, injunctive relief was not necessary because

Swift’s current lease complied with the regulations. Id. at *9.

It also held that Plaintiffs had failed to prove damages and

that restitution and disgorgement were not available under the

regulations. Plaintiffs filed a motion to reconsider, which the

district court denied on September 15, 2009. OOIDA v. Swift

Transp. Co., No. CV-02-1059-PHX-PGR, 2009 WL 2983206

(D. Ariz. Sept. 15, 2009). This appeal followed.

II. STANDARD OF REVIEW

We review a district court’s interpretation of a federal statute de novo, United States v. Migi, 329 F.3d 1085, 1087 (9th

Cir. 2003), and we do the same for its grant of summary judgment. Howard v. Everex Sys., Inc., 228 F.3d 1057, 1060 (9th

Cir. 2000). In evaluating a motion for summary judgment, we

infer all facts in favor of the non-moving party. SEC v. Koracorp Indus., Inc., 575 F.2d 692, 698 (9th Cir. 1978). A district

court’s decision to grant or deny an injunction is reviewed for

abuse of discretion. Id. at 701.

III. THE DISCLOSURE & DOCUMENTATION 

REQUIREMENTS OF 49 C.F.R. § 376.12(h)

Plaintiffs argue that the district court erred in concluding

that Swift’s Revised Lease complied with 49 C.F.R.

1200 OWNER-OPERATOR v. SWIFT TRANSPORTATION
§ 376.12(h). Plaintiffs contend that the Revised Lease (post2003), while an improvement over the Old Form Lease (pre2003), nonetheless falls short of compliance with the regulations because it does not disclose the amount of Swift’s profits and mark-ups as components of the charge-back prices. 

[1] When construing a statute or regulation, we look to

“the whole law, and to its object and policy,” not simply to

“a single sentence or member of a sentence.” Doe v. Rumsfeld, 435 F.3d 980, 987 (9th Cir. 2006) (quoting John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S.

86, 94-95 (1993)). Section 376.12(h) provides as follows:

The lease shall clearly specify all items that may be

initially paid for by the authorized carrier, but ultimately deducted from the lessor’s compensation at

the time of payment or settlement, together with a

recitation as to how the amount of each item is to be

computed. The lessor shall be afforded copies of

those documents which are necessary to determine

the validity of the charge.

We have previously held that “[a] primary goal of this regulatory scheme is to prevent large carriers from taking advantage

of individual owner-operators due to their weak bargaining

position.” Swift I, 367 F.3d at 1110; see also Lease and Interchange of Vehicles (“Notice of Proposed Rulemaking” or

“NPRM”), 46 Fed. Reg. 44013, 44014, 1981 WL 107853

(Sept. 2, 1981), (“It appears that, in certain instances, carriers

are defeating the intent of the present regulations by profiting

from charge-back items at the expense of owner-operators.”);

Lease and Interchange of Vehicles (“Final Rule”), 47 Fed.

Reg. 51136, 51139, 1982 WL 146684 (Nov. 12, 1982), (discussing one purpose of the Final Rule, to “deter any excessive

‘mark up’ of insurance, as discussed in our notice of proposed

rulemaking”). One way to ensure carriers do not take advantage of lessors is to mandate that carriers disclose the full

costs that lessors will be obligated to pay up front. This preOWNER-OPERATOR v. SWIFT TRANSPORTATION 1201
vents carriers from hiding fees until the charges have already

been incurred and allows lessors to make informed decisions

about where to seek products and services. See Lease and

Interchange of Vehicles Ex Parte No. MC-43 (Sub-No. 7),

131 M.C.C. 141, 151-52, 1979 WL 11158, at *8 (Jan. 9,

1979), RED Add. 13 (“We believe that a prime concern of

lessors in choosing insurance coverage is knowing exactly

how much they will be charged. With this information they

are better equipped to obtain the best insurance coverage possible.”).

[2] In furtherance of these goals, section 376.12(h) contains both a disclosure provision, requiring carriers to disclose

the charges they will deduct from lessors’ compensation, and

a documentation provision, requiring carriers to offer proof

that lessors have been charged appropriately. We address the

disclosure and documentation provisions separately below. 

A. Disclosure 

Swift’s Revised Lease lists all charge-backs to which lessors are subject, along with either the flat-fee price for that

charge-back (i.e., $15/week) or other information relevant to

compute the price (i.e., number of gallons times the posted

pump price). The Lease also discloses whether the price of a

charge-back includes a mark-up or administrative fee.

OOIDA argues, however, that the disclosure requirements

mandate that Swift recite precisely how all charge-backs are

to be computed, including informing lessors what portion of

the price is composed of Swift’s actual costs versus its profits,

administrative expenses, etc. In this case, they argue that

Swift’s mere statement of the dollar amount to be charged and

the notice that the flat fee included “administrative costs” was

insufficient to satisfy the disclosure requirements. Thus, the

crux of the current dispute is whether motor carriers must

simply disclose (1) the full charge they impose on owneroperators (or, in the case of a variable-rate charge, the method

of computing the charge) and (2) the fact that certain charges

1202 OWNER-OPERATOR v. SWIFT TRANSPORTATION
included mark-ups; or whether, as plaintiffs contend, they

must also disclose (3) the complete methods by which such

charges are calculated, including documentation of their costs

to third parties and profits realized. 

[3] Defendants do not cross-appeal the district court’s

declaratory judgment that their Old Form Lease was unlawful.

See DC Opinion & Order, 2007 WL 2808997, at *2

(“conclud[ing] that . . . Swift’s old form leases . . . violated

the charge-back regulation at least to the extent that those

leases did not disclose the fact that certain of the charge-backs

included a ‘mark-up’, i.e., a sum added by Swift as compensation for its administrative costs in supplying the products or

services to the owner-operators and/or to provide it with a

profit on those products and services”). Therefore, we do not

review in this opinion the question of whether the regulations

mandate that carriers disclose the existence of mark-ups.

Instead, we consider the narrower question of whether Swift’s

current lease, which includes such disclosures, is lawful without revealing the additional, more detailed information Plaintiffs argue is required.

[4] This is an issue of first impression in this Circuit.

While this Court has already heard an earlier appeal in this

case, that appeal concerned only a denial of preliminary

injunction and its analysis was confined to the correct standard for issuing such an injunction. The Eleventh Circuit, the

only court of appeals that has analyzed this issue on the merits, recently filed an amended opinion persuasively addressing

a similar claim. The court concluded that, at least with respect

to flat-fee charge-backs, “376.12(h) does not require [carriers]

to do more than disclose the flat-fee in the lease and follow

up with settlement statements that explain the final amount

charged back.” OOIDA v. Landstar Sys., Inc. (“Landstar II”),

622 F.3d 1307, 1320 (11th Cir. 2010). 

[5] While the text of the regulation does not rule out either

party’s proffered construction, a plain language reading

OWNER-OPERATOR v. SWIFT TRANSPORTATION 1203
slightly favors Defendants’ simpler construction. The text of

the regulation simply mandates that the lease (1) identify all

goods and services that will be subject to a charge-back; and

(2) provide lessors with a way to determine how much they

will be charged for that product or service (or “a recitation as

to how the amount of each item is to be computed”). 49

C.F.R. § 376.12(h). The requirement that carriers disclose

“how the amount of each item is to be computed” appears to

be, but is not necessarily, satisfied where carriers simply do

the full calculation in advance and supply owner-operators

with the exact price they will be charged. Similarly, for

variable-rate fees, identifying how the price will be calculated

may, but need not necessarily, involve disclosing exactly what

the carrier’s costs and profits are. However, as the Eleventh

Circuit noted, neither party’s interpretation contradicts the

meaning of the text. See Landstar II, 622 F.3d at 1320 (noting

that “both [parties] make sensible arguments about the plain

language of § 376.12(h).”). Therefore, we must move beyond

the four corners of the regulation to examine its purpose and

history. 

[6] Beyond the text of the regulation, Plaintiffs contend

that its purpose would also be served by requiring carriers to

disclose their profits and the quantity of any mark-ups they

include in charge-backs. They argue that the final version of

section 376.12(h) incorporated the ICC’s disapproval (voiced

earlier in its Notice of Proposed Rulemaking) of the profits

carriers were making off of charge-backs to the detriment of

owner-operators.2 Thus, it intended to curb excessive mark2Defendants contend that the NPRM issued in 1981, 46 Fed. Reg.

44013, 44014-15, 1981 WL 107853 (Sept. 2, 1981), is irrelevant because

it is superceded by the Final Rule, which contains narrower language. The

Eleventh Circuit also heavily emphasized this point, effectively disregarding the NPRM in its decision. Landstar II, 622 F.3d at 1320-22. While

Defendants and the Eleventh Circuit are correct that the Final Rule, to the

extent that it differs from the NPRM, controls, dismissing the NPRM commentary in its entirety is not warranted given the ICC’s reference to it in

1204 OWNER-OPERATOR v. SWIFT TRANSPORTATION
ups by motor carriers and level the playing field with regard

to information about how charge-backs are computed. See

Final Rule, 47 Fed. Reg. 51136, 51139, 1982 WL 146684

(Nov. 12, 1982). However, OOIDA seems to erroneously

equate “excessive” with “any” mark-ups in this instance. See

DC Opinion & Order, 2007 WL 2808997, at *2. The district

court, and virtually every court that has addressed the issue,

has correctly concluded that profiting from charge-backs is

not per se unlawful. Id.; see also, e.g., Landstar II, 622 F.3d

at 1319; OOIDA v. C.R. England, Inc., 508 F. Supp. 2d 972,

981 (D. Utah 2007) (“[C]harge-backs that include profits and

fees are not per se unlawful under § 376.12(h) . . . .”). Thus,

to ascribe to the regulations a purpose of eliminating carriers’

profits is unsustainable.3 The central purpose of the statute is

the Final Rule itself. See Final Rule, 47 Fed. Reg. 51136, 51139, 1982 WL

146684 (Nov. 12, 1982), (discussing the need to protect lessors from

unfair carrier practices, “as discussed in our notice of proposed rulemaking”). However, the NPRM does not merit the weight that Plaintiffs would

give it because the Final Rule refers to changes made as a result of comments indicating the proposed rule would be onerous on carriers. See id.

at 47 Fed. Reg. 51139; Landstar II, 622 F.3d at 1320-22 (discussing the

differences between the proposed and final versions of the rule); see also

id. at 1319 (“Few principles of statutory construction are more compelling

than the proposition that Congress does not intend sub silentio to enact

statutory language that it has earlier discarded in favor of other language.”) (quotations omitted). Therefore, we refer to the NPRM throughout this opinion as probative evidence of the regulation’s purpose to the

extent that it is consistent with the text and commentary in the Final Rule.

3One case Plaintiffs cite to support their contention that a full itemization is necessary has been persuasively dismissed by the Eleventh Circuit.

In Ledar II, the carrier’s lease contained neither a disclosure of what services and products would be charged back to the owner-operators, nor a

description of how the amount of those charges would be calculated. See

OOIDA v. Ledar Transport, No. 00-0258-CV-W-FJG, 2004 WL 5249148,

*5 (W.D. Mo. Dec. 30, 2004) (“Ledar II”) (“Ledar’s Lease Agreement

with Plaintiffs failed to identify [numerous] items that were charged-back

against their compensation . . . .”). The court also made the following finding of fact: “Ledar charged-back for Comdata-related transaction fees in

excess of what Ledar advanced on behalf of Plaintiffs and Class members.

OWNER-OPERATOR v. SWIFT TRANSPORTATION 1205
not to limit carriers’ profitability; rather, it is to ensure that

they do not reap unfair profits “at the expense of owneroperators.” See NPRM, 46 Fed. Reg. 44013, 44014-15, 1981

WL 107853 (Sept. 2, 1981).

[7] Thus, the district court reasoned that courts should construe the regulation to ensure that owner-operators have fair

notice of any fees they will be required to pay. See DC Opinion & Order, 2007 WL 2808997, at *4. This construction is

reasonable given the regulation’s text and the competing values of fairness and efficiency cited in the regulatory history.

Compare NPRM, 46 Fed. Reg. 44013, 44014, 1981 WL

107853 (Sept. 2, 1981) (“It appears that, in certain instances,

carriers are defeating the intent of the present regulations by

profiting from charge-back items at the expense of owneroperators.”); with Final Rule, 47 Fed. Reg. 51136, 51139,

1982 WL 146684 (Nov. 12, 1982) (“The parties contend that

the costs and administrative burdens associated with the proposed rule would be enormous . . . . In light of these comments, we conclude that, rather than require carriers to state

with specificity the amount of charge-backs, we should,

instead, require that the lease contain the charge-back items,

Ledar hid its actual costs by ‘whiting out’ the actual costs in documentation provided to drivers.” Id. at *6 (footnote omitted). The court’s conclusion of law on this issue states, “The regulatory history of Section

376.12(h) indicates that charge-backs that exceed the actual amount

advanced by the motor carrier are unlawful.” Id. at *6 n.36 (citing NPRM,

46 Fed. Reg. 44013 (Sept. 2, 1981)). 

The Eleventh Circuit pointed out that Ledar II relies on the 1981 Notice

of Proposed Rulemaking, rather than the Final Rule, in determining that

mark-ups themselves are unlawful. Landstar II, 622 F.3d at 1319. While

we note above that the NPRM should not be dismissed entirely, in this

case its language is not supported by the Final Rule. The Final Rule does

not indicate in any way that mark-ups are per se unlawful; indeed, it

attempts to deter “excessive mark-ups,” suggesting that only a certain subset of mark-ups are problematic. Therefore, we agree with the Eleventh

Circuit that Ledar II’s analysis is flawed and does not merit concurrence

with its conclusions. 

1206 OWNER-OPERATOR v. SWIFT TRANSPORTATION
together with a recitation as to how the amount of each item

is computed.”). Other courts considering this issue have come

to similar conclusions. See Landstar II, 622 F.3d at 1319-22;

C.R. England, 508 F. Supp. 2d at 981-82. 

[8] Disclosure of the amounts owner-operators will be

charged furthers this purpose of fair notice by ensuring that

carriers do not lure lessors to purchase goods from them with

the false promise of at-cost or low charges, only to hit them

later with charges that they were unaware of before they

received their settlement statements. A complete disclosure of

profits and third-party costs is unnecessary to reach this goal.

[9] Defendants’ position is the strongest with regard to its

flat-fee charge-backs. If the carrier charges a flat fee, there is

no danger of surprise when the operators receive their settlement statements. Lessors can plan accordingly and purchase

their goods and services elsewhere if they can find a better

deal. See OOIDA v. Rocor Int’l, Inc., No. CIV-98-846-L,

2000 WL 35512897, at *3 (W.D. Okla. July 19, 2000)

(“[Carrier’s] argument that it need not disclose the method of

computing the $35.00 charge because [it is] a ‘flat fee’ does

not alter the fact that it did not disclose the amount charged

. . . .”). A listed price is thus the clearest way to comply with

the requirement that carriers inform lessors how their charges

will be calculated, as nothing is left to chance or surprise.

Neither the text nor the purpose of the regulation requires

more. See Final Rule, 47 Fed. Reg. 51136, 51139, 1982 WL

146684 (Nov. 12, 1982) (concluding that whenever carriers

cannot “state with specificity the amount of charge-backs, we

should, instead, require that the lease contain . . . a recitation

as to how the amount of each item is computed”); Landstar

II, 622 F.3d at 1320. 

Construing the regulation becomes more complicated, however, when the carrier does not charge a flat fee, but rather

some variable rate for a product or service. In such cases, simply disclosing that a charge will include a mark-up may be

OWNER-OPERATOR v. SWIFT TRANSPORTATION 1207
insufficient because, without knowing what the mark-up will

be, the lessor may have no ability to determine up front what

she will be required to pay. Indeed, the Eleventh Circuit’s

analysis in Landstar II explicitly distinguished flat-fee from

variable-rate charge-backs, presuming that a full accounting

of mark-ups was required for variable-rate prices in order for

lessors to know what they would be charged. The court noted,

Landstar admits that § 376.12(h) mandates the disclosure of the motor carrier’s third-party, actual costs

for variable-rate charge-backs. For example, Landstar agrees that it must disclose its actual, third-party

costs for charge-backs under certain variable-rate

formulas: for instance, it admits that it must provide

its actual costs for the LCAPP Tire Program, which

specifies in the lease that the charge-back is “Landstar’s vendor cost + $6 administrative fee.”

Landstar II, 622 F.3d at 1320; see also Tayssoun Transp., Inc.

v. Universal Am-Can, Ltd., No. Civ.A. H-04-1074, 2005 WL

1185811, at *17 (S.D. Tex. Apr. 20, 2005) (holding that

leases containing variable-rate insurance charge-backs with

no comprehensible explanation of how they were calculated

violated § 376.12(h)); C.R. England, 508 F. Supp. 2d at 981-

82 (finding violation of § 376.12(h) for variable-rate chargebacks that were not disclosed in the lease); OOIDA v. Ledar

Transport, No. 00-0258-CV-W-2-ECF, 2000 WL 33711271,

at *7 (W.D. Mo. Nov. 30, 2000) (Ledar I) (“For the few items

that Defendant’s Standard Lease Agreement does specify, it

fails to recite how the amount of each such item is computed

(e.g., whether Defendant will deduct simply the actual cost of

the charge, or the cost plus administrative fees, etc.).”); Cunningham v. Lund Trucking Co., 662 F. Supp. 2d 1262, 1274

(D. Or. 2009) (finding a violation of 376.12(h) for failure to

disclose how deductions for insurance premiums and license

fees would be calculated). 

The Eleventh Circuit’s analysis goes further than the district court in this case with regard to the disclosures required

1208 OWNER-OPERATOR v. SWIFT TRANSPORTATION
for variable-rate charge-backs. Landstar II, 622 F.3d at 1320.

Indeed, it appears Landstar conceded that it was required to

provide a full itemization of its costs to third-parties for variable fees. See id. (“Landstar admits that § 376.12(h) mandates

the disclosure of the motor carrier’s third-party, actual costs

for variable-rate charge-backs.”). While section 376.12(h)

makes no explicit distinction between flat and variable fees,

the Eleventh Circuit’s rationale is sensible in that it reconciles

the text of the regulation with its articulated purposes in both

the NPRM and the Final Rule. Where carriers have charged

a flat fee, no further disclosure of “how” a price is to be determined is warranted, for lessors already have the exact price

they will be expected to pay. Where carriers have charged a

variable rate, the court held, the regulation requires a clear

disclosure of how the price will be calculated. 

However, we decline to make the blanket assertion that all

variable-rate charge-backs per se require a disclosure of the

amount of carriers’ profits and costs. A full “recitation as to

how the amount of each item is computed” does not necessarily require carriers to disclose their precise profits or costs to

third-parties, even for variable-rate fees. Instead, a carrier

could identify some fixed benchmark, multiplier, percentage

mark-up, or other formula that would allow the lessor to calculate his price, without revealing how much of the mark-up

contained profits versus other expenses. For example, Swift’s

2007 Revised Lease sets a formula for weekly collision insurance rates based on the stated value of the lessor’s vehicle. By

contrast, as Swift’s counsel conceded at oral argument, certain

variable-rate charge-backs would require a full, itemized disclosure. For example, if a charge-back was described as being

based in part on the carrier’s actual third-party costs, see, e.g.,

Landstar II, 622 F.3d at 1320 (discussing a lease specifying

“that the charge-back is ‘Landstar’s vendor cost + $6 administrative fee’ ”), those costs would have to be disclosed so that

the lessor could determine what it needed to pay. 

[10] The controlling principle is that carriers must provide

sufficient information such that lessors can determine in

OWNER-OPERATOR v. SWIFT TRANSPORTATION 1209
advance what their final costs will be. Because the variable

fees Plaintiffs challenge can be determined without disclosing

Swift’s actual costs or profits, those costs or profits need not

be itemized. For instance, its 2007 Revised Lease charges for

collision insurance at a weekly rate of “$.048/$100 of value.”

For such rates, the regulation does not require disclosure of

how each component of the price is calculated, except to the

extent they are necessary to determine the final price. This

narrower construction is sufficient to arm lessors with the

information to determine what will be deducted from their

paychecks and alert them when the charge-back includes a

mark-up so that they can be wary of any potential abuses.

We therefore affirm the district court’s finding that Swift’s

Revised Lease complies with the disclosure requirements of

section 376.12(h).

B. Documentation

[11] In addition to its disclosure provision, section

376.12(h) requires Swift to provide “copies of those documents which are necessary to determine the validity of the

charge.” Appellants contend Swift violated this provision by

only listing the final amount charged on its settlement statements instead of disclosing the amount of Swift’s mark-ups.

At issue is the intended meaning of “validity.” Appellants

would construe validity to mean the “fairness” of the charge,

such that owner-operators could verify how much profit Swift

had made through each charge-back and what percentage of

the price charged derived from Swift’s actual costs. Swift, on

the other hand, construes “validity” to mean simply that the

charge initially promised is the charge actually deducted from

owner-operators’ paychecks. In other words, for example,

owner-operators only need information sufficient to verify

that if Swift said it would charge them $25 per week for insurance, it actually charged them $25 per week. 

[12] Because we conclude that the disclosure requirements

do not mandate a complete itemization of Swift’s profits and

1210 OWNER-OPERATOR v. SWIFT TRANSPORTATION
fees (except where required to calculate variable-rate fees),

we similarly hold that the documentation provision does not

require such an itemization. Indeed, the district court concluded that the weekly settlement statements satisfy the documentation requirement to the extent that they “provide

sufficient information to allow [owner-operators] to determine

whether or not the charge-back rates previously disclosed to

them were being used to determined their charge-backs.” DC

Opinion & Order, 2007 WL 2808997, at *4. This is all the

regulation requires to allow lessors to ensure that they only

pay for what they have agreed to pay in advance. See Landstar II, 622 F.3d at 1319-20; Rocor Int’l, 2000 WL 35512897,

at *3 (“Likewise, ROCOR’s argument that it need not disclose the method of computing the $35.00 charge because [it

is] a ‘flat fee’ does not alter the fact that it did not disclose

the amount charged and has not provided ‘copies of those

documents which are necessary to determine the validity of

the charge.’ ”) (quoting 49 C.F.R. § 376.12(h)).

We affirm the district court’s finding that Swift’s Revised

Lease complies with the documentation requirements of section 376.12(h).

IV. RESTITUTION AND DISGORGEMENT

Plaintiffs argue that section 14704(a)(1)’s provision authorizing the court to provide injunctive relief permits them to

seek restitution and disgorgement for Swift’s past violation of

Truth-in-Leasing regulations. They contend the district court

erred in finding that the statute confined the court’s equitable

powers to injunctive relief only.

The district court notes that this “is not a settled issue in the

Ninth Circuit.” OOIDA v. Swift Transp. Co., No. CV-02-

1059-PHX-PGR, 2009 WL 2983206, at *2 (D. Ariz. Sept. 15,

2009). However, the district court’s approach is supported by

both the statutory text, 49 U.S.C. § 14704(a)(1) (“A person

may bring a civil action for injunctive relief . . . .”), and outOWNER-OPERATOR v. SWIFT TRANSPORTATION 1211
of-circuit case law on this issue. See Landstar II, 622 F.3d at

1324 (“Injunctive relief constitutes a distinct type of equitable

relief; it is not an umbrella term that encompasses restitution

or disgorgement.”) (citing OOIDA v. New Prime, Inc., 213

F.R.D. 537, 545 (W.D. Mo. 2002)); C.R. England, 508 F.

Supp. 2d at 983-84 (concluding that § 14704 only authorized

injunctive relief, damages, and attorney’s fees).

[13] Plaintiffs argue that courts always retain their full

equitable powers unless a statute expressly removes them. See

Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946).

However, Porter and its progeny contain the caveat that “unless otherwise provided by statute,” the court retains its full

equitable powers. See id. at 398-99 (construing a statute giving the district court power, “upon a proper showing, to grant

‘a permanent or temporary injunction, restraining order, or

other order’ ”) (emphasis added); see also CFTC v. Co Petro

Mktg. Grp., Inc., 680 F.2d 573, 583-84 (9th Cir. 1982) (construing a statute with open-ended language conferring powers

on the court); CFTC v. Wilshire Inv. Mgmt. Corp., 531 F.3d

1339, 1344 (11th Cir. 2008) (same). In this case, by contrast,

the statute has done precisely that; it has provided a different

scheme of enforcement, listing only injunctive relief to the

exclusion of other equitable remedies. Indeed, it “ ‘is an elemental canon of statutory construction that where a statute

expressly provides a particular remedy or remedies, a court

must be chary of reading others into it.’ ” Landstar II, 622

F.3d at 1323-24 (quoting Meghrig v. KFC Western, Inc., 516

U.S. 479, 488 (1996)). Therefore, the district court’s reading

of the statute is the most sensible in light of longstanding case

law and principles of statutory interpretation. 

Plaintiffs also attempt to argue that Swift I, the Ninth Circuit’s earlier opinion in this case, supports their position with

regard to the availability of equitable remedies. 367 F.3d

1108, 1112-14 (9th Cir. 2004). However, Swift I’s discussion

of “traditional equitable discretion” relates solely to the test

courts should use in determining whether to grant a prelimi1212 OWNER-OPERATOR v. SWIFT TRANSPORTATION
nary injunction. It is thus inapposite to the question presented

here as it concerns the court’s “discretion to determine the

appropriateness of injunctive relief,” not its discretion to

award other forms of equitable relief in the face of a statute

providing only for injunctive relief. Id. at 1112. 

[14] We affirm the district court’s determination that restitution and disgorgement are not permitted under section

14704(a)(1). 

V. DAMAGES

Plaintiffs argue that the district court erred in concluding

that they were not entitled to recover damages under section

14704(a)(2) for Swift’s past violation of the Truth-in-Leasing

regulations. The district court found that Plaintiffs had failed

to demonstrate “actual damages” as a result of Defendants’

violations, which the court concluded was required by the

statute. DC Opinion & Order, 2007 WL 2808997 at *7-9.

Plaintiffs, by contrast, argue that the proper measure of damages in this instance is the amount of Swift’s undisclosed and

undocumented mark-ups. 

“We review the trial court’s determination that damages

were not proved under the clearly erroneous standard.” Landstar II, 622 F.3d at 1325 (citing Anderson v. Bessemer City,

470 U.S. 564, 573 (1985)). However, we review its interpretation of a federal statute de novo. Migi, 329 F.3d at 1087 (citations omitted).

[15] The district court’s conclusion regarding the standard

for proving damages comports with the statutory text and case

law on this question. The text of section 14704(a)(2) states

plainly that

[a] carrier or broker providing transportation or service subject to jurisdiction under chapter 135 is liable for damages sustained by a person as a result of

OWNER-OPERATOR v. SWIFT TRANSPORTATION 1213
an act or omission of that carrier or broker in violation of this part.

49 U.S.C. § 14704(a)(2) (emphases added). Each court that

has addressed the issue, including our own, has agreed that

the statute requires proof of actual damages. See Fulfillment

Servs., Inc. v. United Parcel Serv., Inc., 528 F.3d 614, 621-22

(9th Cir. 2008); see also, e.g., Landstar II, 622 F.3d at 1326;

OOIDA v. New Prime, Inc., 339 F.3d 1001, 1012 (8th Cir.

2003). We are bound by Fulfillment Services and the text of

the statute itself to require actual damages.

[16] Using the legal standard of actual damages, the district court’s decision to grant summary judgment to Swift on

the issue of damages was not in error. As the court pointed

out, Plaintiffs failed to produce evidence of actual damages,

arguing instead that they merited monetary awards in the

amount of Swift’s undisclosed mark-ups. DC Opinion &

Order, 2007 WL 2808997, at *8-9. Plaintiffs, on appeal, cannot point to any evidence in the record of monetary loss they

have suffered as a result of Swift’s violations. Since the mere

act of charging a mark-up does not violate the regulations,

Plaintiffs cannot prove damages simply by showing that Swift

sometimes charged more than its actual costs for chargebacks. See C.R. England, 508 F. Supp. 2d at 981-82 (“Simply

proving that Defendant charged more to Plaintiffs for a product or service than it paid to a third-party vendor is insufficient, without more, to establish that Plaintiffs have sustained

damages as a result of a disclosure violation under

§ 376.12(h).”).

We therefore affirm the district court’s determination that

Plaintiffs failed to show actual damages as required under

section 14704(a)(2). 

1214 OWNER-OPERATOR v. SWIFT TRANSPORTATION
VI. INJUNCTIVE RELIEF

Lastly, Appellants argue the district court erred in not

awarding injunctive relief against Swift for its past violation

of the Truth-in-Leasing regulations.4 The district court concluded that injunctive relief was unnecessary because Swift is

currently compliant with the regulations. DC Opinion &

Order, 2007 WL 2808997 at *9.

“We review permanent injunctive relief for an abuse of discretion or application of erroneous legal principles.” Hunsaker v. Contra Costa Cnty., 149 F.3d 1041, 1042 (9th Cir.

1998). Substantively, there is “[n]o per se rule requiring the

issuance of an injunction upon the showing of [a] past violation.” Koracorp, 575 F.2d at 701. Instead, the district court

has discretion to determine “whether there is a reasonable

likelihood that the wrong would be repeated.” Id. If so, it may

order relief.

Under this deferential standard of review, we hold that the

district court’s denial of injunctive relief was not an abuse of

discretion. Since the court’s declaratory judgment regarding

the Old Form Lease’s violations of Section 376.12(h) is

unchallenged and legally binding on the parties, and Swift’s

Revised Lease complies with the regulations, the court did not

abuse its discretion in determining that injunctive relief was

unnecessary. 

VII. CROSS-APPEAL: STATUTE OF LIMITATIONS

Because we affirm the district court on the issues discussed

above, we do not reach this issue.

4As the district court notes, injunctive relief would only be available

with regard to OOIDA, as the individual named plaintiffs no longer drive

for Swift. DC Opinion & Order, 2007 WL 2808997 at *9. 

OWNER-OPERATOR v. SWIFT TRANSPORTATION 1215
VIII. CONCLUSION

[17] For the foregoing reasons, we affirm the district

court’s finding that Swift’s Revised Lease complies with the

Truth-in-Leasing regulations and its denial of damages,

injunctive relief, restitution, and disgorgement. 

AFFIRMED.

1216 OWNER-OPERATOR v. SWIFT TRANSPORTATION